$\require{mediawiki-texvc}$
  • 검색어에 아래의 연산자를 사용하시면 더 정확한 검색결과를 얻을 수 있습니다.
  • 검색연산자
검색연산자 기능 검색시 예
() 우선순위가 가장 높은 연산자 예1) (나노 (기계 | machine))
공백 두 개의 검색어(식)을 모두 포함하고 있는 문서 검색 예1) (나노 기계)
예2) 나노 장영실
| 두 개의 검색어(식) 중 하나 이상 포함하고 있는 문서 검색 예1) (줄기세포 | 면역)
예2) 줄기세포 | 장영실
! NOT 이후에 있는 검색어가 포함된 문서는 제외 예1) (황금 !백금)
예2) !image
* 검색어의 *란에 0개 이상의 임의의 문자가 포함된 문서 검색 예) semi*
"" 따옴표 내의 구문과 완전히 일치하는 문서만 검색 예) "Transform and Quantization"
쳇봇 이모티콘
안녕하세요!
ScienceON 챗봇입니다.
궁금한 것은 저에게 물어봐주세요.

논문 상세정보

가집행선고의 실효로 인한 가지급물 반환의무의 준거법

The Law Applicable to Obligations to Return Provisional Payments Resulting from Termination of Declaration of Provisional Execution

법학연구 v.51 , 2017년, pp.507 - 545  
석광현
초록

At the request of a shipbuilding company, an insurance company (“Defendant”) issued a refund guarantee of advance payment in favor of the buyer, which was later assigned to the financing institutions (“Plaintiffs”) that provided the shipbuilding finance. The Plaintiffs filed a suit against the Defendant seeking the return of advance payment pursuant to the refund guarantee and default interest thereon calculated at the rate set forth by the “Special Act on Acceleration of Litigation, etc.” (“Special Act”). The Supreme Court held that the Special Act on statutory interest rate cannot be characterized only as a matter of procedure, even though it is applied in relation to remedies through litigations in order to expedite litigations. Since the purpose of the Special Act is to set the extent of damages resulting from failure to duly perform monetary obligations, the Supreme Court decided that the Special Act was not applicable to the present case which centered around an obligation governed by English law. However, even though the author acknowledges that the default interest accruing from late payment is a matter of substance, the author still believes that the Special Act should be applicable to the case at hand as the law of the forum, since the Special Act’s purpose of promoting judicial economy is more important. The Plaintiffs won the case in its entirety at the first instance, and the court of first instance’s judgement included a declaration of provisional execution. In order to avoid compulsory execution of the judgment, the Defendant made a provisional payment according to the judgment. The Defendant later filed an appeal and applied for the return of the provisional payment. At the second instance, the Plaintiffs were required to return the provisional payment, since part of the judgment of the first instance was repealed and the declaration of provisional execution was partly invalidated. The interest rate applicable to the provisional payment to be returned became the issue. The Plaintiffs argued that English law applicable to the refund guarantee should also be applicable to the unjust enrichment pursuant to the accessory connecting principle under the proviso of Article 31 of the Private International Law Act (“PILA”). Under this view, the interest rate would be 8%. However, the Supreme Court held that the Special Act was applicable to the case and applied the higher interest rate of 20% under the Special Act. The Supreme Court’s rationale was that the proviso of Article 31 of the PILA was not applicable to the Plaintiffs’ obligation to return the provisional payment, since such obligation is a statutory one prescribed by the Civil Procedure Act. The fact that the Supreme Court discussed the application of the proviso of Article 31 of the PILA could be interpreted as an indication that the Supreme Court characterized the obligation to return provisional payment as a matter of substance. However, the author believes that the fact that the Supreme Court applied Korean law directly without first applying the PILA in order to determine the law applicable to unjust enrichment indicates that the Supreme Court characterized the obligation as a matter of procedure and therefore applied Korean law as the law of the forum according to the so-called “lex fori principle”. While applying for the return of the provisional payment, the Defendant argued that the default interest should be calculated at the rate set forth by the Special Act, whereas the Plaintiffs argued that the rate under English law should be applied. The Supreme Court applied the interest rate under the Special Act. This is probably because the Supreme Court regarded the default interest resulting from the late payment of the return of the provisional payment as a matter of procedure. However, the author believes that the Supreme Court’s conclusion on this point is inconsistent with the holding of the Supreme Court on the f...

참고문헌 (0)

  1. 이 논문의 참고문헌 없음

이 논문을 인용한 문헌 (0)

  1. 이 논문을 인용한 문헌 없음

원문보기

원문 PDF 다운로드

  • 원문 PDF 정보가 존재하지 않습니다.

원문 URL 링크

  • 원문 URL 링크 정보가 존재하지 않습니다.
상세조회 0건 원문조회 0건

DOI 인용 스타일